Talib v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 2102

FEDERAL CIRCUIT COURT OF AUSTRALIA

Talib v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2102

File number(s):

SYG 2342 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

18 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for Regional Employer Nomination (Subclass 187) Visas – where the applicants did not have an approved nomination – whether the Tribunal had an evident and intelligible justification for the adverse findings – whether the Tribunal denied the applicants natural justice or procedural fairness – where the applicants’ submissions invited impermissible merits review – no arguable case for the relief claimed – application dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth)

Legislation:

Migration Act 1958 (Cth) ss 359A, 476

Migration Regulations 1994 (Cth) sch 2; cl 187.233(3)

Federal Circuit Court Rules 2001 (Cth) r 44.12

Number of paragraphs:

13

Date of hearing:

18 August 2021

Place:

Sydney

Solicitor for the applicants:

In person

Solicitor for the first respondent:

Ms E Bennett, HWL Ebsworth Lawyers

ORDERS

SYG 2342 of 2020

BETWEEN:

YASIR BIN TALIB

First Applicant

ANJUM GOHAR YASIR

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	18 AUGUST 2021

THE COURT ORDERS THAT:

1.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

2.The applicants pay the first respondent’s costs fixed in the amount of $3,737.00.

REASONS FOR JUDGMENT

JUDGE STREET:

Introduction

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 September 2020, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants’ Regional Employer Nomination (Subclass 187) Visas (“the Visas”).

   Background

2. The applicants are citizens of Pakistan and applied for the Visas on 27 September 2016. The second applicant is the spouse of the first applicant.

3. On 15 February 2018, the delegate refused to grant the Visas because the applicants did not have an approved nomination and, accordingly, did not meet the criterion of cl 187.233(3) of sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). 

4. On 24 February 2018, the applicants applied to the Tribunal for review. On 29 April 2020, the Tribunal sent the applicants a letter pursuant to s 359A of the Act, inviting them to comment on the fact that they did not have an approved nomination. On 12 May 2020, the applicants provided a response but did not provide an approved nomination.

5. On 3 June 2020, the applicants appeared before the Tribunal. On 11 September 2020, the Tribunal affirmed the decision of the delegate in the circumstances where the applicants did not have an approved nomination. The Tribunal found that the applicants did not meet the established criteria under cl 187.233(3) of the Regulations. 

6. The applicants commenced these proceedings on 12 October 2020. The proceedings were fixed for a show cause hearing today, 18 August 2021.

7. The applicants sought to explain the circumstances relating to why they did not have an approved nomination and made reference to the migration agent having been negligent. Sadly, none of those are matters that give rise to an arguable case of relevant error. The applicants’ personal circumstances and the work that they undertook are not circumstances that permit this Court to grant any relief.

8. This Court has no power to determine the matter on passionate or discretionary grounds. In substance, the applicants’ submissions invited the Court to engage an impermissible merits review. Nothing said by the applicants identified an arguable case of relevant error.

   The Ground

9. The Ground in the application is as follows:

   The Administrative Appeals Tribunal committed jurisdictional error by failure to give proper, genuine and realistic consideration to nomination and visa application.

   Particulars

   1.Tribunal ‘acted in a manifestly unreasonable and unconscionable way’. Tribunal failed to inform both NAZ and us either by phone or SMS that it has initiated Nomination Review after 2 years in cold storage, shortly after COVID19 struck. Tribunal is well aware of that Nomination review is linked with visa review outcome. At the time of visa review strong arguments were presented to reopen nomination review. All evidences of Nomination review were provided at the time of visa review. Nominator attended visa review. AAT notice dated 15 Jan 2020 did not mention notice is issued under s.359(2) of the Migration Act, may render the notice invalid. AAT Notice dated 15 Jan 2020 does not state that s.359C applies and pursuant to s.360 (3) the review applicant is not entitled to appear before the Tribunal. Notice needs to derive power from the Act to be valid. Cumulatively Tribunal failed to accord Natural Justice and Procedural Fairness to linked nomination and visa review in bad faith by sending generalised letter on 15 Jan 2020.

   Consideration

10. In circumstances where the Tribunal had sent the applicants a s 359A letter, and the applicants did not have an approved nomination, there was no reason for the Tribunal to address any other explanations advanced by the applicants in respect of the reasons why they did not have the approved nomination. The applicants’ assertion of an arguable error relating to a failure to have a genuine and realistic consideration to the application of the Visas is without substance. The applicants could not succeed if they did not have an approved nomination, which was an establish criteria before the Tribunal.

11. The contention that the Tribunal’s decision is unreasonable is without substance. The absence of an approved nomination provides an evident and intelligible justification for the Tribunal’s decision. Further, in the circumstances of this case, it is apparent that the Tribunal complied with its statutory obligations and gave the applicants the benefit of a s 359A letter. There is no substance in the assertion that there was any denial of natural justice or procedural fairness.

12. The Court is not satisfied that the application has raised an arguable case for the relief claimed. The Court is satisfied that this is an appropriate case in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

13. Accordingly, the application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirteen (13) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 18 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 6 October 2021